The High Court has quashed decisions refusing subsidiary protection to three anonymised applicants, finding that they were not given a fair opportunity to address adverse credibility findings relied on in the refusals.
In a judgment delivered on 20 June 2017, Mr Justice McDermott ruled that the decision-makers had relied on findings made by the Refugee Appeals Tribunal (RAT) during earlier asylum proceedings without inviting the applicants to comment on them or giving them a fresh opportunity to revisit matters relevant to their protection claims.
The applicants, identified as M.L. and J.C.B., both from the Democratic Republic of the Congo, and V.J., from Moldova, had each been refused subsidiary protection. They challenged those decisions by judicial review. The judgment says the protection refusals drew extensively on adverse credibility conclusions reached in the applicants’ asylum cases. It found no evidence that they had been invited to address those conclusions or given a fresh credibility assessment.
The court held that the applicants’ right to be heard required a separate and independent assessment of their subsidiary protection claims. A further interview is not required in every case, and the court did not order a general right to an oral hearing or to call and cross-examine witnesses. However, where an adverse credibility finding is central and contested, the decision-maker must consider whether an interview or, in some cases, an oral hearing is needed to ensure the applicant can effectively respond.
The court therefore made orders of certiorari quashing all three subsidiary protection refusals. The judgment did not itself grant the applicants protection status. It left the claims to be reconsidered in accordance with fair procedures.
The applicants had also argued that Ireland’s two-stage process, which considers subsidiary protection after asylum is refused, unfairly tied protection claims to proposed deportation. The court rejected that challenge, finding that the applications were considered before any deportation decision and that the applicants had not shown the process made it impossible or excessively difficult to exercise their rights. It also rejected claims concerning delay, discrimination, proportionality, and the independence or competence of the officials who considered the applications.
The judgment concerned the subsidiary protection decisions, not the deportation orders. Its final order quashed the protection refusals; the other grounds advanced were not established.